Herbert v Railway Passengers Assurance Co [1938]
- Reported: [1938] 1 All ER 650
- Year: 1938
- Court: King's Bench Division
FACTS:-
Mr Wilkinson had insured his motor cycle and side car with the Defendant’s company. The policy provided that the Defendant should not be liable in respect of any accident incurred while any motor cycle was being driven by or was for the purpose of being driven by him in the charge of any person other than the insured.
Mr Wilkinson while driving a friend, Mr Perkins, fell ill and was unable to drive. He gave permission to Mr Perkins to drive the vehicle. Unfortunately, they had a serious accident with a lorry. Both Mr Wilkinson and Mr Perkins were severely hurt, but more disastrous for the present Claimant, her mother being killed, and she being injured.
When, after the accident, a claim was made by the present Claimant upon Mr Wilkinson, Mr Wilkinson referred the matter to the Defendant’s company, but they promptly repudiated liability, saying that the insured was only covered while the cycle was being driven by him himself, and by no one else, and that the driving by Mr Perkins was his risk, and not theirs.
In an action brought by the present Claimant she succeeds against Mr Wilkinson, and the total amount, with the costs of the whole matter, is now over £700. The costs were increased because the present Claimant brought an action against both the motor lorry and the motor cycle, failing against the motor lorry but succeeding against the motor cycle. The court ordered a Bullock order whereby the Claimant became liable to the driver of the lorry and the driver and owners of the lorry are still entitled to recover the costs from Mr Wilkinson.
Mr Wilkinson was unable to pay that sum, and therefore, under the Road Traffic Act 1934, section 10, the Claimant is able to bring her action against the Defendant, the Railway Passengers Assurance Company, the insurers of Mr Wilkinson.
This is the case against the Defendant in the King’s Bench Division before Justice Porter.
HELD:-
There were two real issues in this judgement, firstly, whether the Defendant company are protected because they only insured Mr Wilkinson, their assured, while he was driving himself and secondly whether casual notice to an insurance company is sufficient.
With regards to the first issue, Justice Porter referred to the actual words of the policy as the correct starting point, in particular the words of the exception clause;
“the company shall not be liable in respect of any accident incurred while any motor cycle is being driven by or is for the purpose of being driven by him in the charge of any person other than the insured”
In this case, taking the wording of the policy alone, and nothing else, Justice Porter did not think that one can fairly construe it as meaning anything other than the insurer shall be liable while the motor is being driven by any person other than the insurer, or is, for the purpose of being driven by him, in the charge of any person other than the insured.
Mr Elkin, on behalf of the claimant, suggested that the words “driven by” as well as the words “or is for the purpose of being driven by “, were qualified by, and formed part of, the phrase which continues “in the charge of any person other than the insured.” He said it ought to be read
“is being driven by any person other than the insured in the charge of any person other than the insured or is for the purposes of being driven by him in the charge of any person other than the insured”
Section 10 does not I think impose any such liability in a case where the insurers have their limited their liability by the wording of the policy, but only in a case where there is an apparently valid policy covering the liability, which yet they could have avoided or cancelled because of some misrepresentation or concealment of the assured.
Justice Porter held upon the construction of the policy the exception applied and Mr Wilkinson would not have been able to recover there under, and, therefore, the Claimant could not recover in this action under the Road Traffic Act 1934 section 10.
In regards to the second issue Justice Porter did not agree that a mere conversation with an agent of the insurance company was sufficient to be regarded as notice required by the Act.
Mr Wilkinson failed to give any direct notice to the Defendant, but said that notice was given to the gentleman who was the agent for the defendant company for affecting the insurance. He saw no reason why the agent should regard Mr Wilkinson’s statement as a piece of casual conversation, Mr Wilkinson, who had come up to see his former companions, mentioned in a friendly, casual conversation that an action had been brought against him.
He held that notice to a insurance company must be something more formal than a casual mention of the proceedings in a conversation, it must be something which would indicate to the company’s agent that indicate such notice is being given. He did state, however, that notice to an agent of the insurance company would be sufficient if it did meet the necessary conditions of the Act.
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